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Execution Copy
This SECOND SUPPLEMENTAL INDENTURE, dated as of August 17, 2001 (the
"Supplemental Indenture"), between THE DIAL CORPORATION, a Delaware corporation
(the "Company"), and ▇▇▇▇▇ FARGO BANK ARIZONA, N.A. (F/K/A NORWEST BANK ARIZONA,
N.A.), a national banking association organized and existing under the laws of
the United States of America, as Trustee (the "Trustee"), supplementing that
certain Indenture, dated as of September 23, 1998 (the "Base Indenture'),
between the Company and the Trustee (such Base Indenture, as supplemented by
this Supplemental Indenture for this series of Securities, being referred to
herein as the "Indenture").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of the Base
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more
series as provided for in the Base Indenture heretofore executed and delivered,
Section 9.01(l) of the Base Indenture provides that, without the
consent of the Holders of the Securities of any series, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more supplemental indentures to the Base Indenture
to establish the form or terms of Securities of any series as contemplated by
Sections 2.01 and 3.01 of the Base Indenture.
The Company proposes to issue a series of Securities denominated "7.00%
Senior Notes due 2006" (such Securities being referred to herein as the "Notes")
pursuant to the terms of this Supplemental Indenture and substantially in the
form set forth below, in each case with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by the Base
Indenture and this Supplemental Indenture, and with such letters, numbers, or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
This Supplemental Indenture is subject to, and governed by, the
provisions of the Trust Indenture Act that are required to be a part of and to
govern indentures qualified under the Trust Indenture Act.
All things necessary to make this Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE ONE
ISSUANCE OF NOTES
Section 1.01. Issuance of Notes; Principal Amount; Maturity.
(a) On or about August 17, 2001, the Company shall issue and
deliver to the Trustee, and the Trustee shall authenticate, Notes substantially
in the form set forth in Exhibit A, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
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required or permitted by the Base Indenture and this Supplemental Indenture, and
with such letters, numbers, or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
(b) There is hereby authorized a series of Securities
designated "7.00% Senior Notes due 2006." The Notes shall mature on August 15,
2006, which shall be the Stated Maturity of the Notes.
Section 1.02. Interest on the Notes; Payment of Interest.
(a) The Notes shall bear interest at the rate of 7.00% per
annum from and including August 17, 2001 until the principal amount thereof is
due and at a rate of 7.00% per annum on any overdue principal and premium, if
any, and, to the extent permitted by law, on any overdue interest. Interest
shall be payable on February 15 and August 15 of each year (each, an "Interest
Payment Date"), commencing February 15, 2002. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
(b) The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in such Indenture,
be paid to the Person in whose name a Note is registered at the close of
business on the Regular Record Date for such interest, which shall be the
February 1 or August 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
(c) Payment of the principal of (and premium, if any) and any
interest on the Notes shall be made at the designated Corporate Trust Office of
the Trustee or at the office of its agent maintained for that purpose in the
Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address appears in the Security Register.
The Company hereby initially designates the Trustee as Paying Agent,
Security Registrar, transfer agent and custodian, and the designated Corporate
Trust Office of the Trustee or the office of its agent located in the Borough of
Manhattan, The City of New York, as the offices or agencies where the Notes may
be surrendered for registration of transfer or exchange or presentation for
payment or redemption and where notices and demands to or upon the Company in
respect of the Notes or this Supplemental Indenture may be received.
ARTICLE TWO
CERTAIN DEFINITIONS
Section 2.01. Certain Definitions.
The terms defined in this Section 2.01 (except as herein otherwise
expressly provided or unless the context of this Supplemental Indenture
otherwise requires) for all purposes of this Supplemental Indenture and of any
indenture supplemental hereto have the respective meanings
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specified in this Section 2.01. All other terms used in this Supplemental
Indenture that are defined in the Base Indenture or the Trust Indenture Act,
either directly or by reference therein (except as herein otherwise expressly
provided or unless the context of this Supplemental Indenture otherwise
requires), have the respective meanings assigned to such terms in the Base
Indenture or the Trust Indenture Act, as the case may be, as in force at the
date of this Supplemental Indenture as originally executed.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by the
lessee), discounted from the respective due dates thereof to such date at a rate
per annum equal to the prevailing market interest rate, at the time such lease
was entered into, on United States Treasury obligations having a maturity
substantially the same as the average term of such lease, plus 3%. The net
amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of the rent payable by the lessee with respect to
such period after excluding amounts required to be paid by such lessee, whether
or not designated as rent or additional rent, on account of maintenance and
repairs, services, insurance, taxes, assessments, water rates and similar
charges and contingent rents (such as those based on sales). In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net
amount of rent shall include the lesser of (i) the total discounted net amount
of rent required to be paid from the later of the first date upon which such
lease may be so terminated or the date of the determination of such net amount
of rent, as the case may be, and (ii) the amount of such penalty (in which event
no rent shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated).
"Comparable Treasury Issue" has the meaning ascribed thereto in Section
4.01 hereof.
"Comparable Treasury Price" has the meaning ascribed thereto in Section
4.01 hereof.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any current liabilities which
are by their terms extendible or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount thereof is
being computed or which is supported by other borrowings with a maturity of more
than 12 months from the date of calculation, (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles and (iii) appropriate adjustments on account of minority interests
of other Persons holding stock of the Company's Subsidiaries, all as set forth
on the most recent balance sheet of the Company and its consolidated
Subsidiaries (but, in any event, as of a date within 150 days of the date of
determination) in each case excluding intercompany items and computed in
accordance with generally accepted accounting principles as in effect from time
to time.
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors who (i) was a member of the Board of Directors
on the date hereof or (ii) was nominated for election or elected to the Board of
Directors with the approval of a majority of the
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Continuing Directors who were members of the Board of Directors at the time of
such nomination or election.
"Debt" means notes, bonds, debentures and other similar evidences of
indebtedness for money borrowed.
"Generally Accepted Accounting Principles" means generally accepted
accounting principles set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, applied on a
consistent basis and as in effect from time to time.
"Independent Investment Banker" has the meaning ascribed thereto in
Section 4.01 hereof
"Lien" means any pledge, mortgage, lien, charge, encumbrance or
security interest.
"Permitted Liens" means (i) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (ii)
Liens for taxes, assessments or governmental charges or claims that are not yet
delinquent or that are being contested in good faith by appropriate proceedings
promptly instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with Generally Accepted
Accounting Principles shall have been made therefor; (iii) Liens securing
reimbursement obligations with respect to letters of credit (whether or not
issued under the Credit Agreement) otherwise permitted under the Indenture and
issued in connection with the purchase of inventory or equipment by the Company
or any Subsidiary in the ordinary course of business; (iv) Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, landlords operators, repairmen
and other similar Liens incurred in the ordinary course of business; (v)
easements, rights-of-way zoning restrictions, reservations, encroachments and
other similar encumbrances in respect of real property, which do not, in the
opinion of the Company, materially impair the use of such property in the
operation of the business of the Company or the value of such property; (vi)
Liens upon specific items of inventory or equipment and proceeds of the Company
or any Subsidiary securing its obligations in respect of bankers' acceptances
issued or created for its account to facilitate the purchase, shipment, or
storage of such inventory and equipment; (vii) leases or subleases granted to
others in the ordinary course of business that do not materially interfere with
the business of the Company and its subsidiaries; (viii) Liens incurred or
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance, and other types of social security,
including any Liens securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-money bonds or other
similar obligations (exclusive of obligations for the payment of borrowed
money); (ix) Liens incurred or deposits made to secure liability to insurance
carriers under insurance or self-insurance arrangements, including liens of
judgments thereunder that are not currently dischargeable; (x) Liens on any
property held in trust pursuant to defeasance or covenant
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defeasance provisions governing indebtedness of the Company or any Restricted
Subsidiary arising in connection with any defeasance or covenant defeasance of
such indebtedness; (xi) Liens to secure (or encumbering deposits securing)
obligations arising from warranty or contractual service obligations of the
Company or any Restricted Subsidiary, including rights of offset and setoff; and
(xii) Liens incurred in connection with repurchase, swap or other similar
agreements.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity.
"Principal Property" means any manufacturing plant, distribution center
or warehouse, together with the land upon which it is erected and fixtures
comprising a part thereof, in each case, owned by the Company or any Restricted
Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 1% of Consolidated Net
Tangible Assets but not including such manufacturing plants, distribution
centers or warehouses or portions thereof which in the opinion of the Company,
together with all such other manufacturing plants, distribution centers and
warehouses or portions thereof previously so declared, is not of material
importance to the total business conducted by the Company and its Subsidiaries
as an entirety.
"Redemption Date" has the meaning ascribed thereto in Section 4.01
hereof.
"Redemption Price" has the meaning ascribed thereto in Section 4.01
hereof.
"Reference Treasury Dealer" has the meaning ascribed thereto in Section
4.01 hereof.
"Reference Treasury Dealer Quotations" has the meaning ascribed thereto
in Section 4.01 hereof.
"Restricted Securities" has the meaning ascribed thereto in Section
3.01 hereof.
"Restricted Subsidiary" means any Subsidiary of the Company which, at
the time of determination, owns Principal Property.
"Sale and Leaseback Transaction" has the meaning ascribed thereto in
Section 3.02 hereof.
"Treasury Rate" has the meaning ascribed thereto in Section 4.01
hereof.
"Voting Stock" with respect to a Person, means all classes of capital
stock or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners or
trustees thereof.
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ARTICLE THREE
CERTAIN COVENANTS
Subject to Article Fourteen of the Base Indenture, the following
covenants shall be applicable to the Company for so long as any of the Notes are
outstanding in addition to the covenants contained in the Base Indenture.
Section 3.01. Limitation on Liens.
The Company will not itself, and will not permit any Restricted
Subsidiary to, create, incur, issue or assume any Debt secured by any Lien on
any Principal Property owned by the Company or any Restricted Subsidiary, and
the Company will not itself, and will not permit any Restricted Subsidiary to,
create, incur, issue or assume any Debt secured by any Lien on any shares of
stock or Debt of any Restricted Subsidiary (such shares of stock or Debt of any
Restricted Subsidiary being called "Restricted Securities"), without in any such
case effectively providing that the Notes (together with, if the Company shall
so determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to the Notes) shall be
secured equally and ratably with (or prior to) such secured Debt, for so long as
such other secured Debt shall be so secured, unless after giving effect thereto,
the aggregate principal amount of all such secured Debt then outstanding plus
the Attributable Debt of the Company and its Restricted Subsidiaries in respect
of Sale and Leaseback Transactions involving Principal Properties entered into
after the date of the first issuance by the Company of Notes under this
Supplemental Indenture (other than Sale and Leaseback Transactions permitted by
paragraph (b) of Section 3.02 hereof) would not exceed an amount equal to 10% of
the Company's Consolidated Net Tangible Assets; provided, however, that nothing
contained in this Section 3.01 shall prevent, restrict or apply to, and there
shall be excluded from secured Debt in any computation under this Section 3.01,
Debt secured by:
(a) Liens on any Principal Property or Restricted Securities
of the Company or any Subsidiary existing as of the date of the first
issuance by the Company of the Notes;
(b) Liens on any Principal Property or Restricted Securities
of any Person existing at the time such Person becomes a Restricted
Subsidiary, or arising thereafter whether or not the obligations
secured by such Liens are assumed by the Company or a Restricted
Subsidiary (i) otherwise than in connection with the borrowing of money
arranged thereafter and (ii) pursuant to contractual commitments
entered into prior to and not in contemplation of such Person's
becoming a Restricted Subsidiary;
(c) Liens on any Principal Property or Restricted Securities
of the Company or any Subsidiary existing at the time of acquisition
thereof (including acquisition through merger or consolidation or
acquisition of stock or assets or otherwise) or securing the payment of
all or any part of the purchase price or construction cost of the
Principal Property or Restricted Securities or securing any Debt
incurred prior to, at the time of or within 180 days after the
acquisition of such Principal Property or Restricted Securities or the
completion of any such construction, whichever is later, for the
purpose of financing all or any part of the purchase price or
construction cost thereof (provided
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such Liens are limited to such Principal Property or Restricted
Securities, to improvements on such Principal Property and to any other
property or assets not then constituting a Principal Property or
Restricted Security);
(d) Permitted Liens;
(e) to the extent not covered by (d) above, pledges or
deposits, Liens resulting from litigation or judgments, taxes or other
governmental charges or landlord or tenant rights and other Liens
incidental to the conduct of the business or the ownership of the
property and assets of the Company or a Restricted Subsidiary which
were not incurred in connection with borrowing of money or the
obtaining of advances or credit, and which do not, in the opinion of
the Company, materially detract from the value of the property or
assets or materially impair the use thereof in the operation of the
business of the Company and its Restricted Subsidiaries, taken as a
whole;
(f) Liens on any property to secure all or part of the cost of
improvements or construction thereon or indebtedness incurred to
provide funds for such purpose in a principal amount not exceeding the
cost of such improvements or construction;
(g) Liens which secure Debt owing by a Subsidiary to the
Company or to a Restricted Subsidiary; and
(h) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a
whole or in part, of any of the Liens referred to in paragraphs (a)
through (g) above or the Debt secured thereby; provided that (1) such
extention, renewal, substitution or replacement Lien shall be limited
to all or any part of the same Principal Property or Restricted
Securities that secured the Lien extended, renewed, substituted or
replaced (plus improvements or expansions on such property, and plus
any other property or assets not then constituting a Principal Property
or Restricted Securities) and (2) in the case of paragraphs (a) through
(g) above, the Debt secured by such Lien at such time is not increased
(except to pay for any premium, interest, fee or expense payable m
connection with any such replacement, extension or renewal).
For the purposes of this Section 3.01 and Section 3.02 hereof, the
giving of a guarantee which is secured by a Lien on a Principal Property or
Restricted Securities, and the creation of a Lien on a Principal Property or
Restricted Securities to secure Debt which existed prior to the creation of such
Lien, shall be deemed to involve the creation of Debt in an amount equal to the
principal amount guaranteed or secured by such Lien; but the amount of Debt
secured by Liens on Principal Properties and Restricted Securities shall be
computed without cumulating the underlying indebtedness with any guarantee
thereof or Lien securing the same.
Section 3.02. Limitation on Sales and Leasebacks.
The Company will not itself, and will not permit any Restricted
Subsidiary to, enter into any arrangement after the date of the first issuance
by the Company of the Notes with any bank, insurance company or other lender or
investor (other than the Company or another Restricted Subsidiary) providing for
the leasing by the Company or any such Restricted Subsidiary of any
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Principal Property (except a lease for a temporary period not to exceed three
years by the end of which it is intended that the use of such Principal Property
by the lessee will be discontinued), which was or is owned or leased by the
Company or a Restricted Subsidiary and which has been or is to be sold or
transferred by the Company or a Restricted Subsidiary, more than 180 days after
the completion of construction and commencement of full operation thereof by the
Company or such Restricted Subsidiary, to such lender or investor who has
advanced or will advance funds on the security of such Principal Property
(herein referred to as a "Sale and Leaseback Transaction") unless, (i) the gross
proceeds of the sale or transfer of the Principal Property leased equals or
exceeds the fair market value of such Principal Property and (ii) either:
(a) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all
other Sale and Leaseback Transactions entered into after the date of
the first issuance by the Company of the Notes (other than such Sale
and Leaseback Transactions as are permitted by paragraph (b) below),
plus the aggregate principal amount of Debt secured by Liens on
Principal Properties and Restricted Securities then outstanding
(excluding any such Debt secured by Liens covered in paragraphs (a)
through (h) of Section 3.01 hereof) without equally and ratably
securing the Notes, would not exceed 10% of the Company's Consolidated
Net Tangible Assets, or
(b) the Company, within 180 days after the sale or transfer,
applies or causes a Restricted Subsidiary to apply an amount equal to
the greater of the net proceeds of such sale or transfer or fair market
value of the Principal Property so sold and leased back at the time of
entering into such Sale and Leaseback Transaction (in either case
determined by any two of the following: the Chairman, the President,
any Vice President, the Treasurer and the Controller of the Company) to
(i) purchase other Principal Property having a fair market value at
least equal to the fair market value of the Principal Property (or
portion thereof) sold or transferred in such Sale and Leaseback
Transaction or (ii) the retirement of the Notes or other Debt of the
Company (other than Debt subordinated to the Notes) or Debt of a
Restricted Subsidiary, having a Maturity more than 12 months from the
date of such application (or which is supported by other borrowings
with a maturity of more than 12 months from the date of application) or
which is extendible at the option of the obligor thereon to a date more
than 12 months from the date of such application; provided that the
amount to be so applied shall be reduced by (i) the principal amount of
Notes delivered within 180 days after such sale or transfer to the
Trustee for retirement and cancellation, and (ii) the principal amount
of any such Debt of the Company or a Restricted Subsidiary, other than
Notes, voluntarily retired by the Company or a Restricted Subsidiary
within 180 days after such sale or transfer, or
(c) such Sale and Leaseback Transaction involves property of a
Person existing at the time such Person becomes a Restricted Subsidiary
of the Company or at the time of the sale, lease or other disposition
of the properties of such Person as an entirety or substantially as an
entirety to the Company, in each case (i) otherwise than in connection
with the borrowing of money arranged thereafter and (ii) pursuant to
contractual commitments related to the Sale and Leaseback Transaction
entered into prior to and not in contemplation of such merger, sale,
lease or disposition or such Person's becoming a Restricted Subsidiary.
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Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any Sale and Leaseback Transaction, Attributable
Debt shall not include any Debt resulting from the guarantee by the Company or
any other Restricted Subsidiary of the lessee's obligation thereunder.
Section 3.03. Maintenance of Properties.
The Company will cause all Principal Properties owned by the Company or
any Restricted Subsidiary or used or held for use in the conduct of its business
or the business of any Restricted Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
(except for ordinary wear and tear) and will cause to be made all necessary
repairs, renewals and replacements thereof, all as in the judgment of the
Company may be necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided, however, that nothing in this
Section 3.03 shall prevent the Company or any Restricted Subsidiary from
discontinuing the operation or maintenance of any Principal Properties if such
discontinuation is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Restricted Subsidiary and not reasonably
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder.
Section 3.04. Insurance.
The Company shall keep all of its and its Restricted Subsidiaries'
Principal Properties which are of an insurable nature insured with insurers,
believed by the Company in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like properties
engaged in similar operations in the same general geographic areas in which the
Company and its Restricted Subsidiaries operate, except where the failure to do
so could not reasonably be expected to have a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or prospects of
the Company and its Restricted Subsidiaries, taken as a whole, provided that
such insurance is generally available at commercially reasonable rates, and
further provided that the Company may self-insure, or insure through captive
insurers or insurance cooperatives to the extent consistent with prudent
business practices. Such insurance shall be in such amounts, contain such terms,
be in such forms and be for such periods as are customary in the Company's
industry and commercially reasonable. Such insurance may be subject to such
deductibles as are customary in the industry.
Section 3.05. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (ii) all
material and lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any Subsidiary,
except for any Lien permitted to be incurred under Section 3.01; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax,
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assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
ARTICLE FOUR
REDEMPTION AND PURCHASE OF NOTES
Section 4.01. Right of Redemption.
The Notes may be redeemed, as a whole or in part, at the option of the
Company at any time, at a redemption price (a "Redemption Price") equal to the
greater of (i) 100% of the principal amount of such Notes and (ii) the sum of
the present values of the remaining scheduled payments of principal and Interest
thereon discounted to the redemption date (the "Redemption Date") on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 25 basis points, plus in each case accrued interest
thereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of a comparable maturity to the
remaining term of such Notes. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after consultation with the
Company.
"Comparable Treasury Price" means, respect to any Redemption Date, (A)
the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 3:30 p.m., New York time, on the third
business day preceding such Redemption Date.
"Reference Treasury Dealer" means each of Banc of America Securities
LLC, Deutsche Bank Alex. ▇▇▇▇▇ Inc. and three other primary U.S. Government
securities dealers in The City of New York to be selected by the Company, and
their respective successors.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of Notes to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and
after the Redemption Date interest will cease to accrue on the Notes or portions
thereof called for redemption.
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If less than all of the Notes are to be redeemed, the Trustee will
select the Notes to be redeemed by such method as the Trustee shall deem fair
and appropriate. The Trustee may select for redemption Notes and portions of
Notes in amounts of whole multiples of $1,000.
Section 4.02. Purchase of Securities at Option of the Holder
Upon Change of Control Triggering Event.
(a) If at any time that Securities remain outstanding there
shall occur a Change of Control that is followed by a Rating Decline (such
event, a "Change of Control Triggering Event"), Notes shall be purchased by the
Company at the option of the Holders thereof as of the date that is 60 days
after the occurrence of the Change of Control Triggering Event (the "Change of
Control Purchase Date") at a purchase price equal to 101% of the principal
amount of the Notes, plus accrued and unpaid interest to, but excluding, the
Change of Control Purchase Date (the "Change of Control Purchase Price"),
subject to satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (c) of this Section 4.02.
A "Change of Control" shall be deemed to have occurred if any of the
following occurs after the date hereof:
(1) any "person" or "group" (as such terms are
defined below) (other than as a direct result of repurchases of stock
by the Company or its subsidiaries) is or becomes the "beneficial
owner" (as defined below), directly or indirectly, of shares of Voting
Stock of the Company representing 50% or more of the total voting power
of all outstanding classes of Voting Stock of the Company or has the
power, directly or indirectly, to elect a majority of the members of
the Board of Directors; or
(2) the first day on which a majority of the members
of the Board of Directors does not consist of Continuing Directors; or
(3) the Company consolidates with, or merges with or
into, another Person or the Company sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of the assets
of the Company, or any Person consolidates with, or merges with or
into, the Company, in any such event other than pursuant to a
transaction in which the Persons that, as a group, "beneficially owned"
(as defined below), directly or indirectly, shares of Voting Stock of
the Company immediately prior to such transaction, "beneficially own"
(as defined below), directly or indirectly, shares of Voting Stock of
the surviving or transferee Person representing at least a majority of
the total Voting Stock of the surviving or transferee Person; or
(4) there shall occur the liquidation or dissolution
of the Company.
For the purpose of the definition of "Change of Control," (i) "person" and
"group" have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the term
"group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be
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deemed to include, in addition to all outstanding shares of Voting Stock of the
Company and Unissued Shares deemed to be held by the "person" or "group" (as
such terms are defined above) or other Person with respect to which the Change
of Control determination is being made, all Unissued Shares deemed to be held by
all other Persons and (iii) the terms "beneficially owned" and "beneficially
own" shall have meanings correlative to that of "beneficial owner." The term
"Unissued Shares" means shares of Voting Stock not outstanding that are subject
to options, warrants, rights to purchase or conversion privileges exercisable
within 60 days of the date of determination of a Change of Control.
For purposes of this Section 4.02, a "Rating Decline" shall be deemed
to have occurred if, no later than 90 days after the Rating Date (which period
shall be extended so long as the rating of the Notes is under publicly announced
consideration for possible downgrade by either of the Rating Agencies), either
of the Rating Agencies assigns a rating to the Notes that is lower than Baa3, in
the case of ▇▇▇▇▇'▇ Investor Service, Inc., or BBB-, in the case of Standard &
Poor's Rating Service, will be considered a Rating Decline. For the purpose of
the definition of "Rating Decline," (i) "Rating Agencies" means ▇▇▇▇▇'▇ Investor
Service, Inc. ("Moody's") and Standard & Poor's Rating Service ("Standard &
Poor's") and their successors and assigns and (ii) "Rating Date" means the
earlier of the date of public announcement of (x) the occurrence of the Change
of Control and (y) the intention of the Company to effect a Change of Control.
(b) Within 30 days after the occurrence of a Change of Control
Triggering Event, the Company shall mail a written notice of the Change of
Control Triggering Event to the Trustee (and the Paying Agent if the Trustee is
not then acting as Paying Agent) and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include the form of a Change of
Control Purchase Notice to be completed by the Holder and shall state:
(1) the date of such Change of Control Triggering
Event and, briefly, the events causing such Change of Control
Triggering Event;
(2) the date by which the Change of Control Purchase
Notice pursuant to this Section 4.02 must be given;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the name and address of the Paying Agent;
(6) the procedures that the Holder must follow to
exercise rights under this Section 4.02; and
(7) the procedures for withdrawing a Change of
Control Purchase Notice, including a form of notice of withdrawal.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 4.02 upon delivery of a written notice (which shall be in
substantially the form included in Exhibit B hereto and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and may be delivered electronically or by
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other means in accordance with the Depositary's customary procedures) of the
exercise of such rights (a "Change of Control Purchase Notice") to any Paying
Agent at any time prior to the close of business on the Business Day next
preceding the Change of Control Purchase Date.
The delivery of a Note to any Paying Agent (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Change of Control Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this
Section 4.02, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000.
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change of Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change of Control Purchase
Notice in whole or in a portion thereof that is a principal amount of $1,000 or
in an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Change of Control Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
4.03.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change of Control Purchase Notice or written withdrawal thereof.
Section 4.03. Purchase of Securities at Option of the Holder
Upon a Significant Asset Sale Triggering Event.
(a) If there occurs for the first time while any Securities
remain outstanding a Significant Asset Sale that is followed by a Rating Decline
(such event, a "Significant Asset Sale Triggering Event"), Notes shall be
purchased by the Company at the option of the Holders thereof as of the date
that is 60 days after the occurrence of the Significant Asset Sale Triggering
Event (the "Significant Asset Sale Purchase Date"; together with the Change of
Control Purchase Date, the "Purchase Date") at a purchase price equal to 101% of
the principal amount of the Notes, plus accrued and unpaid interest to, but
excluding, the Significant Asset Sale Purchase Date (the "Significant Asset Sale
Purchase Price"; together with the Change of Control Purchase Price, the
"Purchase Price"), subject to satisfaction by or on behalf of any Holder of the
requirements set forth in subsection (c) of this Section 4.03. Only one
Significant Asset Sale Triggering Event can occur under this Indenture.
A "Significant Asset Sale" means any sale of assets by the Company or
its subsidiaries that, alone or with other sales occurring after the date hereof
(in each case, outside the ordinary course of business) yields gross proceeds to
the Company and its subsidiaries of $500 million or more in the aggregate;
provided, however, that a "Significant Asset Sale" shall not include (i) any
sale of receivables, whether accounted for as a sale or financing under
generally accepted accounting principles or (ii) any Sale and Leaseback
Transaction permitted under Section 3.02; provided, further, that the term
"assets" shall be deemed to include the capital stock of any direct or indirect
subsidiary of the Company.
For purposes of this Section 4.03, a "Rating Decline" shall be deemed
to have occurred if, no later than 90 days after the Rating Date (which period
shall be extended so long as the
13
14
rating of the Notes is under publicly announced consideration for possible
downgrade by either of the Rating Agencies), either of the Rating Agencies
assigns a rating to the Notes that is lower than Baa3, in the case of Moody's,
or BBB-, in the case of Standard & Poor's. For the purpose of the definition of
"Rating Decline," (i) "Rating Agencies" means Moody's and Standard & Poor's and
(ii) "Rating Date" means the earlier of the date of public announcement of (x)
the occurrence of the Significant Asset Sale and (y) the intention of the
Company to effect a Significant Asset Sale.
(b) Within 30 days after the occurrence of a Significant Asset
Sale Triggering Event, the Company shall mail a written notice of the
Significant Asset Sale Triggering Event to the Trustee (and the Paying Agent if
the Trustee is not then acting as Paying Agent) and to each Holder (and to
beneficial owners as required by applicable law). The notice shall include the
form of a Significant Asset Sale Purchase Notice to be completed by the Holder
and shall state:
(1) the date of such Significant Asset Sale
Triggering Event and, briefly, the events causing such Significant
Asset Sale Triggering Event;
(2) the date by which the Significant Asset Sale
Purchase Notice pursuant to this Section 4.03 must be given;
(3) the Significant Asset Sale Purchase Date;
(4) the Significant Asset Sale Purchase Price;
(5) the name and address of the Paying Agent;
(6) the procedures that the Holder must follow to
exercise rights under this Section 4.03; and
(7) the procedures for withdrawing a Significant
Asset Sale Purchase Notice, including a form of notice of withdrawal.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 4.03 upon delivery of a written notice (which shall be in
substantially the form included in Exhibit C hereto and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of the exercise of such
rights (a "Significant Asset Sale Purchase Notice"; together with the Change of
Control Purchase Notice, the "Purchase Notice") to any Paying Agent at any time
prior to the close of business on the Business Day next preceding the
Significant Asset Sale Purchase Date.
The delivery of a Note to any Paying Agent (together with all necessary
endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Significant Asset Sale Purchase Price therefor.
The Company shall purchase from the Holder thereof, pursuant to this
Section 4.03, a portion of a Note if the principal amount of such portion is
$1,000 or an integral multiple of $1,000.
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15
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Significant Asset Sale Purchase Notice contemplated by
this subsection (c) shall have the right to withdraw such Significant Asset Sale
Purchase Notice in whole or in a portion thereof that is a principal amount of
$1,000 or in an integral multiple thereof at any time prior to the close of
business on the Business Day next preceding the Significant Asset Sale Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 4.04.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Significant Asset Sale Purchase Notice or written withdrawal thereof.
Section 4.04. Effect of Purchase Notice.
Upon receipt by any Paying Agent of a Purchase Notice specified in
Section 4.02(c) or 4.03(b), the Holder of a Note in respect of which such
Purchase Notice was given shall (unless such Purchase Notice is withdrawn as
specified below) thereafter be entitled to receive the applicable Purchase Price
with respect to such Note. Such Purchase Price shall be paid to such Holder
promptly following the later of (a) the applicable Purchase Date with respect to
such Note (provided the conditions in Section 4.02(c) or 4.03(c), as the case
may be, have been satisfied) and (b) the time of delivery of such Note to a
Paying Agent by the Holder thereof in the manner required by Section 4.02(c) or
4.03(c), as the case may be.
A Purchase Notice may be withdrawn by means of a written notice (which
may be delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and may be delivered electronically or
by other means in accordance with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying Agent at any time prior to the
close of business on the Business Day immediately preceding the applicable
Purchase Date, specifying the principal amount of the Note or portion thereof
(which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being
submitted.
Section 4.05. Deposit of Purchase Price.
On or before 11:00 a.m., New York City time on the applicable Purchase
Date, the Company shall deposit with the Trustee or with a Paying Agent (other
than the Company or an Affiliate of the Company) an amount of money (in
immediately available funds if deposited on such Business Day) sufficient to pay
the aggregate Purchase Price of all the Notes or portions thereof that are to be
purchased as of such Purchase Date. The manner in which the deposit required by
this Section 4.05 is made by the Company shall be at the option of the Company,
provided that such deposit shall be made in a manner such that the Trustee or a
Paying Agent shall have immediately available funds on the applicable Purchase
Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the applicable Purchase Price of any Note for which a Purchase
Notice has been tendered and not withdrawn in accordance with this Supplemental
Indenture then, on the Purchase Date, such Note will cease to be outstanding and
the rights of the Holder in respect thereof shall terminate (other than the
right to receive the Purchase Price as aforesaid). The Company shall publicly
15
16
announce the principal amount of Notes purchased as a result of such Change of
Control Triggering Event or Significant Asset Sale Triggering Event, as the case
may be, on or as soon as practicable after the applicable Purchase Date.
Section 4.06. Events of Default.
Each of the following events shall constitute an additional "Event of
Default" under the Indenture: (i) the failure of the Company to provide timely
notice of a Change of Control Triggering Event as required by Section 4.02(b);
(ii) the failure of the Company to provide timely notice of a Significant Asset
Sale Triggering Event as required by Section 4.03(b); and (iii) the failure of
the Company to pay the applicable Purchase Price to all Holders who have
tendered and not withdrawn an applicable Purchase Notice, as required by Section
4.05.
ARTICLE FIVE
MISCELLANEOUS
Section 5.01. Applicability of Certain Indenture Provisions.
Each of the defeasance and covenant defeasance provisions of Article
Fourteen of the Base Indenture shall apply to the Notes.
Section 5.02. Reference to and Effect on the Indenture.
This Supplemental Indenture shall be construed as supplemental to the
Base Indenture and all the terms and conditions of this Supplemental Indenture
shall be deemed to be part of the terms and conditions of the Base Indenture.
Except as set forth herein, the Base Indenture heretofore executed and delivered
is hereby ratified, approved and confirmed. The provisions of this Supplemental
Indenture shall for the purposes of this series of Securities supersede the
provisions of the Base Indenture to the extent the Base Indenture is
inconsistent herewith.
Section 5.03. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Article Three hereof if, before or
after the time for such compliance, the Holders of a majority in principal
amount of the Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision, or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision, or condition shall
remain in full force and effect.
Section 5.04. Governing Law.
This Supplemental Indenture and each Note shall be deemed to be a
contract under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of such state. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act,
and shall, to the extent applicable, be governed by such provisions.
16
17
Section 5.05. Supplemental Indenture May be Executed in
Counterparts.
This instrument may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 5.06. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 5.07. Separability.
In case any one or more of the provisions contained in this
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not effect any other provisions of this Supplemental
Indenture or of the Notes, but this Supplemental Indenture and the Notes shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
17
18
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed all as of the day and year first above written.
THE DIAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
[CORPORATE SEAL]
▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President,
General Counsel and Secretary
▇▇▇▇▇ FARGO BANK ARIZONA, N.A., as
Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Attest:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
18
19
STATE OF ARIZONA )
) ss.:
COUNTY OF MARICOPA )
On the _____ day of August, 2001, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is ________________ of The Dial Corporation, one of the parties
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
________________________________________
Name:
Notary Public
State of Arizona
My Commission expires on
19
20
Execution Copy
EXHIBIT A
[FORM OF FACE OF SECURITY]
[IF SUCH SECURITY IS A GLOBAL SECURITY, insert - THIS SECURITY IS A BOOK-ENTRY
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE CERTIFICATED FORM, THUS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE THEREOF OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE DIAL CORPORATION
7.00% Senior Note due August 15, 2006
No. A-___ $________________
CUSIP: ____________
THE DIAL CORPORATION, a corporation duly organized and existing under
the laws the State of Delaware (herein called the "Company," which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________________, or registered
assigns, the principal sum of ___________________ United States Dollars (U.S.
$________) on August 15, 2006 and to pay interest thereon from August 17, 2001
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on February 15 and August 15 in each year,
commencing February 15, 2002, at the rate of 7.00% per annum, until the
principal hereof is paid or made available for payment, and at a rate of 7.00%
per annum on any overdue principal and premium,
21
if any, and, to the extent permitted by law, or any overdue interest. Interest
will be computed on the basis of a 360-day year of twelve 30-day months. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the February 1 or August 1 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, or at the option
of the Holder, the Corporate Trust Office of the Trustee, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
A-2
22
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by their duly authorized officers and by its corporate
seal to be affixed or imported thereon.
THE DIAL CORPORATION
By:
-----------------------
Title:
Attest:
---------------------------------------
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated: ▇▇▇▇▇ FARGO BANK ARIZONA, N.A.
As Trustee
By:
--------------------------
Authorized Signatory
A-3
23
FORM OF REVERSE OF SECURITY
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 23, 1998 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and ▇▇▇▇▇ Fargo Bank Arizona, N.A., as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture and all indentures
supplemental thereto for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, and is issued pursuant to a Second Supplemental
Indenture supplementing the Indenture, dated as of August 17, 2001, between the
Company and the Trustee relating to the issuance of the "7.00% Senior Notes due
2006" of this series (the "Supplemental Indenture").
The Notes may be redeemed, as a whole or in part, at the option of the
Company at any time, at a redemption price equal to the greater of (i) 100% of
the principal amount of such Notes and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to the
redemption date (the "Redemption Date") on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25
basis points, plus in each case accrued interest thereon to the Redemption Date.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is 60 days after the occurrence of a Change in
Control Triggering Event, at a purchase price equal to 101% of the principal
amount thereof together with accrued interest up to, but excluding, the Change
in Control Purchase Date. The Holder shall have the right to withdraw any Change
in Control Purchase Notice (in whole or in a portion thereof that is $1,000 or
an integral multiple of $1,000 in excess thereof) at any time prior to the close
of business on the Business Day next preceding the Change in Control Purchase
Date by delivering a written notice of withdrawal to the Paying Agent in
accordance with the terms of the Indenture.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or any part
specified by the Holder (so long as the principal amount of such part is $1,000
or an integral multiple of $1,000 in excess thereof) of the Securities held by
such Holder on the date that is 60 days after the occurrence of the first
Significant Asset Sale Triggering Event, at a purchase price equal to 101% of
the principal amount thereof together with accrued interest up to, but
excluding, the Significant Asset Sale Purchase Date. The Holder shall have the
right to withdraw any Significant Asset Sale Purchase Notice (in whole or in a
portion thereof that is $1,000 or an integral multiple of $1,000 in excess
thereof) at any time prior to the close of business on the Business Day next
preceding the Significant Asset Sale Purchase Date by delivering a written
notice of withdrawal to the Paying Agent in accordance with the terms of the
Indenture.
A-4
24
In the event of redemption or repurchase of this Security in part only,
a new Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of more than 50% in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for
A-5
25
registration of transfer at the office or agency of the Company in any place
where the principal of and any premium and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or its attorney duly authorized in writing, and thereupon one
or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made to a Holder for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-6
26
Execution Copy
EXHIBIT B
OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL TRIGGERING EVENT
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from The Dial Corporation (the "Company") as to
the occurrence of a Change of Control Triggering Event with respect to the
Company and requests and instructs the Company to redeem the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral
multiple thereof) designated below, in accordance with the terms of the
Indenture referred to in this Security as the Change in Control Purchase Price,
together with accrued interest to, but excluding, such date, to the registered
Holder hereof.
Dated:
--------------
------------------------------------
------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to
Rule 17Ad-15 under the Securities
Exchange Act of 1934.
------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
------------------------------------
NOTICE: THE SIGNATURE TO THE FOREGOING ELECTION MUST CORRESPOND TO THE NAME AS
WRITTEN UPON THE FACE OF THIS SECURITY IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ANY CHANGE WHATSOEVER.
27
Execution Copy
EXHIBIT C
OPTION TO ELECT REPURCHASE
UPON A SIGNIFICANT ASSET SALE TRIGGERING EVENT
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from The Dial Corporation (the "Company") as to
the occurrence of a Significant Asset Sale Triggering Event with respect to the
Company and requests and instructs the Company to redeem the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral
multiple thereof) designated below, in accordance with the terms of the
Indenture referred to in this Security as the Significant Asset Sale Purchase
Price, together with accrued interest to, but excluding, such date, to the
registered Holder hereof.
Dated:
--------------
------------------------------------
------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to
Rule 17Ad-15 under the Securities
Exchange Act of 1934.
------------------------------------
Signature Guaranty
Principal amount to be redeemed
(in an integral multiple of $1,000, if less than all):
------------------------------------
NOTICE: THE SIGNATURE TO THE FOREGOING ELECTION MUST CORRESPOND TO THE NAME AS
WRITTEN UPON THE FACE OF THIS SECURITY IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ANY CHANGE WHATSOEVER.
28
Execution Copy
7.00% SENIOR NOTES DUE 2006
THE DIAL CORPORATION
ISSUER
AND
▇▇▇▇▇ FARGO BANK ARIZONA, N.A.
TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 17, 2001
SUPPLEMENTING THAT CERTAIN
INDENTURE
DATED AS OF SEPTEMBER 23, 1998
29
Execution Copy
TABLE OF CONTENTS
PAGE
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ARTICLE ONE ISSUANCE OF NOTES
Section 1.01. Issuance of Notes; Principal Amount; Maturity.......................... 1
Section 1.02. Interest on the Notes; Payment of Interest............................. 2
ARTICLE TWO CERTAIN DEFINITIONS
Section 2.01. Certain Definitions.................................................... 2
ARTICLE THREE CERTAIN COVENANTS
Section 3.01. Limitation on Liens.................................................... 6
Section 3.02. Limitation on Sales and Leasebacks..................................... 7
Section 3.03. Maintenance of Properties.............................................. 9
Section 3.04. Insurance.............................................................. 9
Section 3.05. Payment of Taxes and Other Claims...................................... 9
ARTICLE FOUR REDEMPTION AND PURCHASE OF NOTES
Section 4.01. Right of Redemption.................................................... 10
Section 4.02. Purchase of Securities at Option of the Holder Upon Change of
Control Triggering Event. ............................................. 11
Section 4.03. Purchase of Securities at Option of the Holder Upon a Significant
Asset Sale Triggering Event. .......................................... 13
Section 4.04. Effect of Purchase Notice.............................................. 15
Section 4.05. Deposit of Purchase Price.............................................. 15
Section 4.06. Events of Default...................................................... 16
ARTICLE FIVE MISCELLANEOUS
Section 5.01. Applicability of Certain Indenture Provisions.......................... 16
Section 5.02. Reference to and Effect on the Indenture............................... 16
Section 5.03. Waiver of Certain Covenants............................................ 16
Section 5.04. Governing Law.......................................................... 16
Section 5.05. Supplemental Indenture May be Executed in Counterparts................. 17
Section 5.06. Effect of Headings..................................................... 17
Section 5.07. Separability........................................................... 17